Monthly Archives: May 2017

Ad Hoc Rulemaking: What is it and why does it matter?

A lot of people think the Administrative Procedures Act (how state and federal agencies make rules) is a hurdle to be avoided, but avoiding it can have consequences. In Texas, the consequence is called ad hoc rulemaking.

There’s always discussion about rulemaking. Rulemaking is an essential part of what an agency does at the state or federal level. It helps the essentially carryout what the legislature has charged them to do. In Texas, we have an issue called “ad hoc” rulemaking. This is where the state agency has created a rule that doesn’t quite live up to the expectations of the Texas Administrative Procedures Act’s formalities (even though they are essentially the informal rulemaking process at the federal level). In Texas, state agencies are essentially required to give public notice of a proposed rule, receive comments on the proposed rule, and respond to public comments. This is commonly known as the notice and comment rulemaking process.

Before we get much further, we want to make sure you understand the difference between a “rule” and a “regulation” promulgated from a Texas agency. The difference is that there isn’t one. The term “rule” and “regulation” are often used interchangeably. Here, we’re going to use the term “rule” since it is a legal term of art.

Ad hoc rulemaking happens when an agency creates a rule or practice that meets the definition of a rule under the Texas Administrative Procedures Act, but hasn’t gone through the formal promulgation process–the notice and comment process. A rule under the Texas APA has three major components:

#1: State agency statement of general applicability that either (i) implements, interprets, or prescribes law or policy or (ii) describes the procedure or practice requirements of a state agency;

#2: Includes the amendment or repeal of a prior rule; and

#3: does not include a statement regarding only the internal management or organization of a state agency and does not affect private rights or procedures.

So how does this usually shake out in real life? At the state agency, this is why the attorneys are generally hesitant to let you send out letters that are dictating how claims or the like are processed (i.e. timelines, reporting, and forms) in ways that haven’t been detailed in the Texas Administrative Code. Sometimes though, it’s accidental. Such as when there is guides and interpretraory material issued by a state agency that inadvertently creates a new policy of the agency. Often, the agency didn’t maliciously intend to violate the rule, it was merely accidental.

So what’s the upshot? Essentially, it’s don’t avoid the APA. If you need to go through the APA, do it. It’s painful at first, but after a while it becomes easy. When you get public input, often you get a better rule than what you started with. We’re all on the same team.

H.R. 2405 Clarifies Religious Institute PA Program Eligibility

On May 11th, 2017, HR 2405 was introduced in an attempt to clarify that religious faculties are eligible for Post-Disaster Public Assistance Programs.

Representative Christopher Smith of New Jersey introduced HR 2405 “To amend the Robert T. Stafford Disaster Relief and Emergency Assistance Act to clarify that houses of worship are eligible for certain disaster relief and emergency assistance on terms equal to other eligible private nonprofit facilities, and for other purposes. Currently facilities that benefit the membership of the religious organization are not included in PA Program Facility eligibility. The concept behind facility eligibility is that it benefits “the community at large.” The current thought process is that a sanctuary or other type of worship facility does not benefit the community at large.

The introduced legislation would bring the entire Private Non-Profit (“PNP” Religious facility into the eligibility matrix for consideration as a facility. The facility would still need to be eligible in other ways though. This legislation was just recently introduced and the exact contents should be available soon. It must still Pass the full House, Senate, and be signed by the President to become effective law.

SB 2078 Requires Requires More Details in School District Disaster Planning

Texas legislation would require more specific details be added to a School District Disaster Plan and allow for the TEA to notify communities if their school districts don’t meet the disaster planning standard.

Texas SB 2078 currently working its way through the Texas House, essentially requires more detailed planning to be included into the School District’s Multi-Hazard Emergency Operations Plan (“MEOP”).

The biggest change is the addition of six requirements into the MEOP establishes for only school districts:

#1: The Chain of Command/Line of Succession Identification;

#2: 2 scenario specific response plans, with more that can be designated by the Texas School Safety Center at Texas State University;

#3: Portable building safety

#4: a parent/guardian communication plan

#5: statement on amount per student spent on school/district safety

#6: identification of the safety and security committee.

The interesting part is the statement on amount spent per student on school/district safety. The legislative history doesn’t currently suggest a reason why. It can be assumed that this is intended to be a marker for the community to see how their tax dollars are being spent.

The accountability and enforcement mechanism to this bill is essentially public shaming. The new Tex. Education Code §37.108(f) would allow the Texas Education Agency to post online those who fail to submit a MEOP, submit an MEOP that doesn’t meet standards, or fail a safety and security audit.

U.S. Army Corps of Engineers Regulatory Mission

This is a great new video that briefly summarizes how the U.S. Army Corps of Engineers (USACE) gets involved with regulating and protecting our nation’s waterways and other natural resources. Again, there’s not much detail, but it gives a good overview of how USACE fits into the big picture.